TMI Blog2018 (11) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... al allowed by way of remand. - Ex.Appeal No.321/08 - FO/76807/2018 - Dated:- 23-10-2018 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) AND SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri N. K. Chowdhury, Advocate for the Appellant (s) Shri S. S. Chattopadhyay, Supdt. (AR) for the Revenue ORDER The present appeal is filed against the Order-in-Original No. 03/Denovo/Commissioner/2008 dated 25.03.2008. The present Order-in-Original has been passed by the Adjudicating Authority consequent upon the Order No.A-739-742/Kol/06 dated 14.07.2006 passed by this Tribunal, in which the case was remanded for denovo adjudication. 2.1 M/s Swamy Packagers Pvt. Ltd. is engaged in the manufacture of HDPE Containers and other Plastic Containers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 07.01.2003 was issued to the appellants and other connected persons proposing the demand of duty on the goods said to be cleared by the appellants in name of the three fictitious firms. At the conclusion of adjudication proceedings, the adjudicating authority, in the first round of limitation, passed the Order-in-Original No.08/MP/Commr./2003 dated 24.07.2003 in which he ordered as follows against M/s Swamy Packagers Pvt. Ltd. : (i) Confirmed the demand of Central Excise duty amounting to ₹ 22,77,677/- along with interest at appropriate rate ; (ii) Penalty of an equal amount of duty demanded was also imposed ; (iii) Penalties were also imposed on the appellant as well as Shri Deo Prakash Rungta, Director as well as Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits of the case, we set aside the impugned order and remand the matter back to the Commissioner, with directions to the Commissioner, with directions to give relied upon the documents to the appellants and deal with the appellant s request of cross examination of various persons. Needless to say that the appellants would co-operate in the matter and would give details of the persons required to be cross examined by them. 3. All the appeals are thus allowed by way of remand. The present Order-in-Original dated 25.03.2008 has been passed in compliance with the direction of the CESTAT s Order, in which the ld.Commissioner ordered as follows : (i) Confirmed the demand of Central Excise duty amounting to ₹ 72,37,269/- along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty does not arise. Not only that in the denovo proceeding, penalty has been imposed by ₹ 5,00,000/- in the denovo initially the penalty was ₹ 2,00,000/-. The Department did not file any appeal against the initial Adjudication Order. The enhancement of penalty in denovo proceeding cannot be permissible in law. 5. The ld.DR for the Revenue justified the impugned order. 6. Heard both sides and perused the records. 7. It is pertinent to record that the Ex.Appeal Nos.335,336/2008 filed by M/s Swamy Packagers Pvt. Ltd. as well as Shri Deo Prakash Rungta, Director of the Appellant Company, came up before the Tribunal and were decided the same vide Final Order Nos.FO/A/76764- 76765/2018 dated 05.10.2018. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f SSI exemption, which has been objected to by the appellants, particularly, in view of the fact that no appeal was filed by the Revenue against the Order-in-Original dated 24.07.2003. On behalf of the appellant, it has also been submitted that there are several errors in the computation of the demand in the present round of litigation. A view of the errors highlighted are that certain amounts have been accounted twice both under M/s Swami Packagers Pvt. Ltd as well as ledger of the buyers and certain amounts shown in the ledger of M/s Mata Packaging as payable to M/s Trade Centre, Guwahati, have been included as clearances made in the name of M/s Mata Packaging even in the absence of any documentary evidences to this effect. The ld.D.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants. However, the benefit of SSI exemption is to be extended on the combined turnover. (ii) Certain discrepancies have been highlighted during the course of hearing of the present appeals, these are required to be considered in relation to the documentary evidences on record. (iii) Death Certificate has been submitted to the effect that Shri Deo Prakash Rungta expired on 17.01.2016. Consequently, all proceedings against him stand abated. (iv) Penalties are imposable against the appellant as well as other persons against whom, penalties have been imposed in the impugned order. But these are to be re-determined proportionately keeping in view the ultimate demand. 11. Keeping in view the fact that the matter is very old ..... X X X X Extracts X X X X X X X X Extracts X X X X
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